Keerthi N. v. State of Kerala & The Commissioner of Entrance Examinations

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **WEDNESDAY, THE 21ST DAY OF OCTOBER 2020 / 29TH ASWINA, 1942** ## **WP(C).No.21657 OF 2020(F)** ## **PETITIONER:** **KEERTHI N. AGED 21 YEARS D/O UNNI N, NHAVILTHODI HOUSE, MANNUR P.O, KOZHIKODE-673 328.** **BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX SRI.MANU SANKAR P.** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 039.** **2 THE COMMISSIONER OF ENTRANCE EXAMINATIONS, GOVERNMENT OF KERALA, FIFTH FLOOR, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN-695001** ## **SRI.V.MANU, SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.21657 OF 2020(F) 2 ## **JUDGMENT** ## **Dated this the 21st day of October 2020** The petitioner applied for appearing in the Entrance Examinations of Kerala Engineering/ Pharmacy/ Architechture/ Medical and Medical Allied Courses (KEAM) 2020 as well as National Eligibility and Entrance Test (Undergraduate) [NEET UG] 2020 for admission to undergraduate courses in medical and allied subjects. She belongs to Ezhava community, which is a socially and educationally backward community (SEBC), eligible for reservation in the event of production of non-creamy layer certificate. Petitioner states that pursuant to notification dated 31.01.2020, she submitted her on-line application for KEAM 2020 on 10.02.2020, opting for Engineering as well as Medical and allied and Pharmacy courses claiming reservation as one belonging to SEBC. But, she produced Ext.P2 certificate, issued by the Tahsildhar on 31.01.2020, which is for Central Government education purpose. Petitioner herself points out that as per clause 5.4.2(b) of the prospectus a candidate claiming reservation under SEBC quota shall upload the Non-Creamy Layer certificate, specifying the community of the candidate from the Village Officer in the prescribed proforma. Even though the petitioner had WP(C).No.21657 OF 2020(F) 3 already obtained Ext.P4 non-creamy layer certificate, as early as on 22.01.2020 from the Village Officer, she had uploaded only the Ext.P2 certificate issued by the Tahsidar for applying for jobs under the Government of India. Petitioner submits that she did not notice the memos / notifications issued by the 2[nd] respondent in the candidates' profile for correcting the defects. In the KEAM 2020 examination she secured rank no.872. Petitioner states that she noticed that her community status was shown as general, only when the results of trial allotment for Pharmacy Course was published on 03.10.2020. On enquiry at the office of the 2[nd] respondent she was given to understand that she did not upload the requisite certificate. It is stated that she approached the Human Rights Commission, which, by Ext.P6 proceedings recommended the 2[nd] respondent to take a lenient view in her case. It is stated that even though she submitted another representation before the Commissioner for Entrance Examinations, she was informed that she would have been included in the reservation category only if the petitioner had uploaded the Non-creamy Layer certificate for state education purpose issued by the Village Officer. Petitioner therefore seeks a direction to the 2[nd] respondent to permit her to upload the noncreamy layer certificate Ext.P4 in support of her claim for WP(C).No.21657 OF 2020(F) 4 reservation. 2. Sri. V. Manu, the learned Senior Government Pleader on instructions explained the entire procedure followed by the Commissioner for Entrance Examinations starting from 07.11.2019 till date. It is stated that the Commissioner for Entrance Examination had as per notification dated 07.11.2019 announced the schedule of entrance examination for KEAM 2020. It was followed by another notification, issued on 26.11.2019, informing all concerned that the proceedings for submission of application for KEAM 2020 would commence in January 2020, and that in order to avail benefits of category/reservation all eligible candidates should upload relevant category certificates along with their Online application form. Another notification was issued on 23.12.2019 again informing the candidates that they should get themselves ready with all the certificates in advance for uploading the same along with their online application, specifically stating that the certificates that would be uploaded along with the online application alone would be accepted. Applications were invited for KEAM by notification issued on 31.01.2020, specifically providing in Clause 6 that the candidates have to upload their photograph, all the documents and eligibility certificates, certificates in proof of the date of birth, nativity, reservation, etc., on or before WP(C).No.21657 OF 2020(F) 5 29.02.2020 by 05.00 p.m. It is stated that the KEAM prospectus was approved by the Government on 31.01.2020 and uploaded in the website on 02.02.2020 which contains a specific provision in Note(i) of Clause 5 to the effect that claims for Special/Mandatory reservation should be made by a candidate in the online application itself, and supporting documents shall be uploaded to the online application within the stipulated time, specifically stating that claims made after the submission of online application will not be entertained and even if supporting evidences are produced the claims for special and mandatory reservation once made in the application cannot be altered by the candidate under any circumstances. Clause 5.4.2 (a) and (b) thereof specifically provided that candidates belonging to socially and economically backward classes (SEBC) should upload, to the online application, a certificate to the extent that the candidate belongs to the community which is designated as SEBC and does not belong to the category of creamy layer, in the proforma given as Annexure V of the G.O.(P) No. 1/2015/BCDD dated 01.01.2015. It is stated that the communities which are included in SEBC are given in Annexure xi of the prospectus. Sub clause (b) of 5.4.2 provided that candidates belonging to Ezhava, Muslim, Other Backward Hindu, Latin Catholic and Anglo Indians, Dheevara and related WP(C).No.21657 OF 2020(F) 6 communities, Other Backward Christian and Kudumbi communities claiming reservation under SEBC Quota should invariably upload the non-creamy layer certificate in the prescribed format for State government Education purpose obtained from the Village Officer concerned. Another press release was issued on 15.02.2020 alerting the candidates about the last date for submission of applications. By notification dated 24.02.2020 the last date was extended till 29.02.2020. A press release was issued on 28.02.2020 informing that there will not be any further extension. The petitioners in all these cases have submitted their applications on or before 29.02.2020. Again on 11.05.2020, the Commissioner issued another notification requesting the candidates to verify their profile and rectify the defects and to submit the requests for rectification before 05.00 p.m., on 25.05.2020. On 16.05.2020 individual memos were issued to candidates in their profile pages to cure the defects. The KEAM entrance examination was held on 16.07.2020. On 28.07.2020, another notification was issued informing the candidates that they can view their profiles and check the details of their claim for reservation status and other benefits in their profile and that they can view defects if any in their online applications by clicking the menu item “Memo details” provided in the profile page. The candidates who submitted WP(C).No.21657 OF 2020(F) 7 defective certificates for EWS quota and NRI quota seats also can rectify the defects by submitting corrected certificates in time. However, as per notification dated 18.08.2020, another opportunity was given to the candidates till 27.08.2020 to cure the defects in the certificates or documents, stating this time also that no further time would be given. It was followed by another notification issued on 07.09.2020 again granting time to candidates till 10.09.2020 asking them to verify their profile and to rectify defects if any in the photograph, signature, fee, documents/certificates, etc., uploaded along with their applications, alerting them that defects which would be cleared within the specified time alone would be considered for allotting any claim/reservation and that further opportunity would not be given for rectification. The KEAM Scores were published on 09.09.2020 and the rank list for admission to Engineering and Pharmacy courses were published on 24.09.2020. Again in notification dated 24.09.2020 one more opportunity was given to the candidates as a last chance, stating that requests were received from several candidates who uploaded defective certificates. Candidates were asked to view their profile in the portal and to rectify the defects from 25.09.2020 to 28.09.2020 again stating that it would be the last chance. It is stated that the WP(C).No.21657 OF 2020(F) 8 activities relating to central allotment process to Professional Degree Courses for the year 2020-21 commenced on 30.09.2020 inviting online options for Engineering and Pharmacy courses. The provisional category wise list of candidates who applied for admission to Engineering and Pharmacy courses and who were allowed with eligible communal reservation/special reservation/reservation under persons with disability was published on 01.10.2020 and final category list was published on 03.10.2020, on which day trial allotment was also made. It is stated that the first phase of allotment commenced on 07.10.2020. The rank list for Architecture course was published on 11.10.2020; categorywise list of candidates for admission to the said course, allowed with reservation was published on 11.10.2020. Options were invited for second round of allotment to Engineering and Pharmacy courses on 12.10.2020. The NEET results were declared on 16.10.2020. It is stated that Kerala medical rank list would be finalised as soon as the NEET marklist is provided by the National Testing Agency. 3. It was also pointed out that each time when opportunities were given to the candidates to cure the defects, they were given intimation by sending individual SMS in the mobile phone numbers given by them, apart from the individual memo WP(C).No.21657 OF 2020(F) 9 issued in their profile pages on 16.05.2020 asking them to cure defects. It is stated that there are 8932 candidates claiming reservation as members of Ezhava community between rank nos 10 and 53215 in the category list for Engineering and 7692 candidates between rank numbers 40 and 46325 in the category list of Pharmacy. The learned Govt. Pleader points out that petitioner did not avail the opportunities which were available to her from 07.11.2019 onwards till 29.09.2020 producing the relevant documents. 4. Relying on the judgment of the Apex Court in **Dolly Chhanda V Chairman JEE and Others** : **(2005) 9 SCC 779** as well as **Charles K Scaria V Dr. C. Mathew: (1980) 2 SCC 752** Sri. Jacob P. Alex, the learned counsel for the petitioner argued that when the petitioner has already claimed reservation and the only defect was in the authority who issued the certificate, she should be permitted to rectify the defect, as she was already having a certificate at the time of her application. The learned counsel for the petitioner also submitted that none of the judgments of this Court has considered an issue similar to the case of petitioner. 5. On the other hand Sri. V. Manu, the learned Senior Government Pleader, relying on the judgments dated 14.08.2020 and 14.09.2020 in W.A.No.1080/2020 and W.A.No. 1183/2020 WP(C).No.21657 OF 2020(F) 10 respectively, and the judgments dated 12.08.2020 in W.P. (C).No.16518/2020, judgments dated 23.9.2020 in W.P.(C) No. 17368/2020, 18910/2020; judgment dated 25.09.2020 in W.P.(C) No. 16432/2020, judgment dated 06.10.2020 in 20844/2020, etc., argued that the petitioner cannot be granted any relief. The learned Government Pleader relied on the judgments in **Sainulabdin vs. State of Kerala : 1995 KHC 362** and **Simi Raj V Commissioner for Entrance Examinations: 1999 KHC 669** wherein this court has rejected similar claims in the light of the specific provisions in the prospectus. 6. I have considered the rival contentions raised on either side. Admittedly the petitioner has not produced the certificate as required in clause 5.4.2(a) and (b) of the prospectus which was published on 02.02.2020, where it was specifically stated that the certificate as required in Annexure V of the G.O.(P) No.1/2015/BCDD dated 19.01.2015 shall be uploaded and that they should invariably upload the non-creamy layer certificate in the prescribed format for State Government Education purpose obtained from the Village Officer concerned. As rightly pointed out by Sri. V. Manu the learned Senior Government Pleader and as admitted by the learned counsel for the petitioner, innumerable opportunities were given to the candidates to cure the defects till WP(C).No.21657 OF 2020(F) 11 28.09.2020. Though it is unfortunate that petitioner who was having a certificate could not properly claim reservation by uploading the relevant certificate, it is seen that petitioner was not at all vigilant even after SMS sent to her mobile number and individual defect memo issued in her profile apart from the notifications issued from time to time between 07.11.2019 and 24.02.2020 when opportunities were provided on multiple occasions each time alerting that no further opportunity would be given. A further opportunity cannot be directed to be given to the candidates by this court. Those who apply for professional degree courses should be vigilant enough to submit their applications along with the requisite documents as required in the prospectus. It is pertinent to note that the candidates are submitting a declaration along with their application (as seen from the confirmation page), to the effect that they have downloaded and read various clauses in the prospectus, agreeing to abide by them. In case the petitioner had read and understood the provisions in the prospectus properly they would have submitted the relevant certificates along with the application itself or would have got it cleared when opportunities were given further. 7. Moreover similar claims of candidates who did not upload the requisite documents at the relevant time were rejected WP(C).No.21657 OF 2020(F) 12 by the Division Bench, after elaborately considering the procedure adopted by the Commissioner for Entrance Examinations and with reference to the case law on the subject in the judgments in W.A.No.1080/2020 and W.A. No. 1183/2020 respectively. In the judgments in W.P.(C) No. 16518/2020, 17368/2020 and 20844/2020, etc also similar claims were rejected. 8. Though the learned Counsel for the petitioner relied on the judgment of the Apex Court in Dolly Chhanda's case (supra), the said judgment in paragraph 7 thereof itself, which petitioner relied on, what was held was that: “D _epending on the facts of a case there can be some relaxation in the matter of submission of proof”_ 9. From the said judgment it would appear that opportunities as given in the present case of KEAM 2020, where candidates were being alerted every now and again for a period of more than 10 months on regular intervals, were not available for those candidates. Moreover the entire procedure of KEAM 2020 is online. The procedure adopted for JEE 2003 and that adopted for KEAM 2020 after a period of 17 years cannot be comparable. The rank list of candidates for Engineering/Pharmacy course for which petitioner applied was published on 24.09.2020; even at that time opportunity was available. A candidate who did not avail those WP(C).No.21657 OF 2020(F) 13 opportunities cannot be granted any further opportunity when there are sufficient number of candidates who have already uploaded the requisite documents are available. 10. In the judgment in **Simi Raj V Commissioner for Entrance Examinations: 1999 KHC 669,** relied on by the learned Government Pleader, a Division Bench of this court considered a similar provision contained in the prospectus. After considering the contentions raised by the learned counsel relying on the judgment in Charles Scaria's case (supra), **AIR 1980 SC 1230,** this Court held in paragraph 6 to 8 is as follows: 6. It is evident from the above mentioned clauses in the application form as well as in the Prospectus, that a candidate is obliged to fill in all relevant particulars in the application form itself. A candidate has also to give a declaration that he has read various clauses in the prospectus and instructions carefully. As we have already – indicated, it is clearly stated in the Prospectus that candidates seeking reservation under the Latin Catholic other than Anglo Indian should invariably produce both community certificate and income certificate obtained from the concerned Village Officer, and that the same should be obtained in the body of the application form itself. Further, the prospectus also clearly says that documents/certificates furnished after the submission of the application will not be entertained under any circumstances, and no opportunity will be given to incorporate any details after the submission of the application. 7. In view of the categorical statements in the Prospectus as well as in the application form, we are of the view that the WP(C).No.21657 OF 2020(F) 14 requirement to produce the community certificate along with the application form is a mandatory requirement. 8. The decision relied on by the petitioner in Charias K Skaria v. C.Mathew, AIR 1980 SC 1230 is not applicable to the facts, of the case. That was a case where the post graduate diploma holders were considered and selected for admission to the post graduate degree course in Ophthalmology by giving them benefit of 10 marks as per Para.4 of prospectus on receipt of information from the University after the last date for application, but before the date of selection, as to their having obtained the diploma before the last date of application in accordance with the Government directive. In that case further the prospectus permitted the Government to modify the method. In that view of the matter, the Supreme Court held that there was nothing objectionable with the Government directive to the selection committee, nor in the communication to the selection committee by the University nor even in their taking into consideration and giving credit for diplomas, although authentic copies of the diploma were not attached to the application for admission. The prospectus dealt with by the Madras High Court in V. Premanand v. State AIR 1995 Mad. 316 is different from the one involved in this case. Prospectus in this case says that documents/certificates furnished after the submission of the application will not be entertained under any circumstances. We are of the view the decision of this Court in Relly Susan Mathew v. The Controller of Entrance Examinations, ILR 1997(2) Ker. 486 is not applicable to the facts of the case, in view of the clauses in the prospectus hereinbefore referred to. 11. The provisions contained in the prospectus in clause 5.33 was more or less similar to the provisions contained in the present prospectus also. WP(C).No.21657 OF 2020(F) 15 12. It is also pertinent to note that in the judgment in **Sainulabdin vs. State of Kerala : 1995 KHC 362** , relied on by the learned Government Pleader, the Division Bench of this Court has held that failure to submit the income certificate in the form prescribed for that purpose, as provided in the prospectus, along with the application would render the application defective and the candidate cannot seek a remedy on the strength of such a detective application under Article 226 of the Constitution. In the light of the judgment also petitioners cannot be granted any relief. 13. Though it is true, as contended by the learned counsel for the petitioner in the judgment in the W.A.1180 of 2020, this Court was considering a case where the candidate did not disclose that she did not claim reservation and that in this present case, the petitioner had claimed reservation and the only defect was that in the authority which issued the certificate, the petitioner who did not avail the opportunities available to her to cure the defect cannot be granted an opportunity at this stage as held by the Division Bench in the judgment in W.A. 1080 of 2020 also that any interpolation at this stage would have an adverse impact on the candidates who have uploaded their certificates in time. Eventhough the petitioner has admitted in the writ petition that the WP(C).No.21657 OF 2020(F) 16 2[nd] respondent had given several opportunities to cure the defects, it is seen that in Ext P5 representation submitted by the petitioner she had stated that she had uploaded all the requisite documents and that she did not get any intimation regarding the defect and that she came to know about the defect only on 06.10.2020. 14. I have already considered and rejected similar claims raised by candidates in identical circumstances, where the candidates failed to produce the relevant certificates. Therefore, I find that the petitioner also does not deserve any relief in this writ petition. Accordingly, this writ petition is dismissed. **Sd/-** **P.V.ASHA JUDGE** DK WP(C).No.21657 OF 2020(F) 17 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE CONFIRMATION PAGE OF THE PETITIONER DOWNLOADED FROM THE CANDIDATE PORTAL OF THE 2ND RESPONDENT** - **EXHIBIT P2 TRUE COPY OF THE NON-CREAMY LAYER CERTIFICATE DATED 31-01-2020 ISSUED BY THE KOZHIKODE TAHSILDAR.** - **EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS** - **EXHIBIT P4 TRUE COPY OF THE NON-CREAMY LAYER CERTIFICATE DATED 22-01-2020 ISSUED BY THE KADALUNDI VILALGE OFFICER FOR STATE EDUCATIONAL PURPOSE.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 06-10-2020 MADE BY THE PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE ORDER IN H.R.M.P NO. 6678/11/8 2020 DATED 07-102-20 OF THE KERALA STATE HUMAN RIGHTS COMMISSION** - **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 09-10-2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT BY E-MAIL** - **EXHIBIT P8 TRUE COPY OF THE E-MAIL DATED 10-10-2020 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P9 TRUE COPY OF THE NOTIFICATION DATED 2409-2020 ISSUED BY THE 2ND RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL**